THERE have been mandatory-minimum sentences in the United States since the days of the first Congress, most of them adopted to punish narrowly defined crimes. A number of the old mandatory minimums are still on the books, for offenses such as "robbery by pirates" (1790) and "practice of pharmacy and sale of poisons in China" (1915). The overwhelming majority of criminal laws passed by Congress specify only a maximum sentence. It has historically been the role of a federal judge to determine whether a convicted offender deserves that maximum, a lesser sentence, or no prison sentence at all. Until seven years ago a federal judge had great leeway in choosing sentences: Congress set only the upper limits, thereby protecting citizens from excessive punishment. Parole boards served as another brake on unduly harsh sentences, deciding when prisoners merited early release.
The first broadly defined mandatory minimums were contained in the Boggs Act, which was passed at the height of the McCarthy era, amid the tensions of the Korean War and domestic fears of Communist subversion. There seemed to be an increase in narcotics use among the young, and lenient judges were thought to be partly to blame. Members of Congress vied to appear tough on drug offenders. Senator Everett Dirksen favored legislation that allowed the death penalty for selling narcotics to minors. Congressman Edwin Arthur Hall advocated giving drug dealers mandatory-minimum sentences of a hundred years. Congressman L. Gary Clemente introduced a bill recommending the death penalty for any violation of the Narcotic Drugs Import and Export Act. The commissioner of the Federal Bureau of Narcotics, Harry J. Anslinger, seemed almost moderate in calling for a mandatory minimum of five years for second offenders, which he assured Congress "would just about dry up the drug traffic." Congress followed his advice and then lengthened the anti-drug mandatory sentences, in 1956. One vocal critic of the new sentencing regime was James V. Bennett, the director of the U.S. Bureau of Prisons, who attributed the passage of such laws to "hysteria." Thereafter Bennett was followed by FBI agents, who submitted reports on his movements and speeches.
By the late 1960s a widespread consensus had emerged in both political parties that the anti-drug mandatory-minimum sentences were a failure. Members of Congress, federal judges, and even prosecutors found them too severe, unjust, and, worst of all, ineffective at preventing narcotics use. The spread of the 1960s drug culture had hardly been impeded by the existence of mandatory-minimum sentences. In 1970 Congress repealed almost all the mandatory penalties for drug offenders, an act celebrated by, among others, Congressman George Bush, who predicted that these "penal reforms" would "result in better justice and more appropriate sentences." A movement arose seeking a new means of determining federal sentences. Allowing too little judicial discretion had proved to be unfair, but too much could also lead to inequities: a bank robber in Florida might be given twenty years by a federal judge, whereas a bank robber in California received probation for exactly the same crime. Marvin Frankel, a federal distinct judge in New York, imagined a system in which a commission of legal experts would set guidelines on how to determine sentences for various crimes, taking into account details of the offender's criminal history and the nature of the offense.
After long and careful deliberation, the Sentencing Reform Act of 1984 was passed by Congress with overwhelming bipartisan support, creating the United States Sentencing Commission. It seemed a triumph of rational jurisprudence over demagoguery, an experiment in social planning that evoked shades of the Progressive Era, when panels of appointed experts were hailed as the ideal form of government. Judge William W. Wilkins Jr., a former protege of Senator Strom Thurmond and Ronald Reagan's first appointee to the federal bench, was made chairman of the new commission. In only eighteen months Wilkins and his fellow commissioners devised sentences of varying severity for about 2,000 different federal crimes. These sentencing guidelines took effect in 1987. Under the new rules each federal offense was assigned a numerical value; the judge added or subtracted points in a given case, according to various criteria; and punishment was determined by matching an offender's total points with a range of applicable sentences listed on a chart. A judge could depart from the guidelines at sentencing, but had to offer an explanation for doing so. The sentence could later be appealed by the defendant -- or the prosecutor.
The same Congress that passed the Sentencing Reform Act also included in that very bill mandatory-minimum sentences for drug offenses committed near schools. Two years later the Anti-Drug Abuse Act of 1986 moved away from the deliberate calibrations of the sentencing guidelines by endorsing the blunt instrument of mandatory-minimum sentences for a wide variety of drug offenders. The University of Maryland basketball star Len Bias had just been killed by crack cocaine and anti-drug sentiment had reached new heights; lawmakers decided once again to send a tough message. Mandatory-minimum sentences, based on the amount of drugs involved in an offense, were set at five years, ten years, and twenty years. Additional mandatory minimums were added later, including what is now known as a "three strikes, you're out" provision that specified life sentences for repeat drug offenders. During the congressional debates on these mandatory sentences there was little mention of the precedent of failure set by the Boggs Act, or of how the new laws would undermine the sentencing guidelines, or of what the wider effects might be on various aspects of the criminal justice system, from the initial filing of charges to the ultimate rates of imprisonment. According to one survey, the most commonly cited justification for the harsh new punishments was a desire for retribution, a legal theory nicknamed "just desserts."
For most of the nation's first 200 years a convicted man or woman could ask a federal judge for mercy. On the basis of extenuating circumstances, a judge could reduce a prison sentence or waive it altogether. The new mandatory-minimum laws took that power away from the judge and handed it to the prosecutor. A U.S. attorney now has the sole authority to decide whether a mandatory minimum applies in a particular case -- that is, whether to frame a charge under such a statute or not. The only way a defendant can be sure of avoiding a mandatory-minimum sentence is to plead guilty and give "substantial assistance" in the prosecution of someone else. The U.S. attorney, not the judge, decides whether the defendant's cooperation is sufficient to warrant a reduction in sentence. A defendant might cooperate and still not receive a shorter sentence, if the information supplied falls short of expectations. Long mandatory prison terms provide a strong incentive to talk. From the government's point of view, guilty pleas, accompanied by cooperation, avoid expensive trials and supply valuabl evidence. From the defendant's point of view, the pressure to name others is enormous.
Some federal judges believe that the quality of much testimony in court has diminished; desperate people will say anything to save themselves. An appeal for compassion is now pointless; all that matters is the demand for cooperation. Under such a system the dilemmas often have an elemental quality. This past January in Kansas City, Tora S. Brown -- a nineteen year old first offender with an eight month old daughter -- cooperated with the government's in a drug case involving PCP but refused to implicate her own mother. Brown was given a ten-year prison sentence without the chance of parole.
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